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Judge closes hearing record on SWEPCO case, to rule within 60 days
Becky GilletteWednesday, November 20, 2013

Just a week ago it looked like it could be months before Arkansas Public Service Commission (APSC) Administrative Law Judge (ALJ) Connie Griffin made a decision in the application by American Electric Power/Southwestern Electric Power Company (SWEPCO) for the Shipe Road to King’s River 345 kiloVolt transmission line. It was believed the judge might have another oral hearing in the case in December before handing in her recommendation.

But on Monday Griffin entered an order stating that no additional oral hearing will be conducted. The order stated that after reviewing briefs submitted by the parties, along with proposed findings of facts and conclusions of law and the extensive record developed during a week long evidentiary hearing in late August, “the ALJ has determined that there is no need to hear oral argument on the matter. As such, it is the finding of the ALJ the hearing is now concluded, the record shall be closed as of the date of this order, and the matter submitted for final determination.”

Now the 60-day countdown begins with the judge required to make a decision on the project that would involve stringing a power line with steel poles 150 to 160-ft. tall along a 150-ft. right-of-way for about 50 miles through scenic and environmentally sensitive areas of Northwest Arkansas.

SWEPCO’s application for a Certificate of Environmental Compatibility and Public Need (CECPN) sparked formation of the citizen opposition group Save the Ozarks (STO), which has opposed the project as unnecessary and detrimental to the environment and the tourism economy. STO Director Pat Costner said not having the opportunity to speak is frustrating, but this latest order isn't necessarily a negative sign.

“In my opinion, our written submissions and statements elicited from SWEPCO’s witnesses establish clearly that SWEPCO’s application and supporting information failed to meet the standards required for approval,” Costner said. “It may be that the judge is reaching a similar conclusion, and so feels no need to hear more.”

While there has been concern that utility companies are almost never denied requests from the APSC, STO attorney Mick Harrison said STO asserted several important procedural flaws that don’t require oral arguments. “So we continue to be cautiously optimistic about the outcome,” Harrison said.

Despite nearly 6,000 public comments in opposition to the project –likely a record amount of opposition for a CECPN application before the APSC – the APSC staff recommended the project be approved. APSC Director John Bethel said staff believes the evidence presented by SWEPCO and other proponents of the power line satisfied legal requirements. “One of those is does it represent an acceptable environmental impact?” Bethel said. “Based on the evidence, we believe the application appropriately addressed those issues.”

SWEPCO and utility groups supporting the SWEPCO application state that the massive power line must be built to assure reliability of electrical service in the region.

Bethel said Judge Griffin would view the recommendation of the staff on equal footing with recommendations of various other parties, including intervenors and applicants. The judge will take all evidence into account and make a decision to either grant or deny the request for a CECPN. That decision will be subject to review by the APSC either on its own, or in response to objections raised by one or more of the parties.

“If there aren’t any objections raised, the commission can act affirmatively to accept, reject or modify the decision,” Bethel said. “If there is no action by the commission for 30 days, then the judge’s decision is deemed accepted by the commission. If one of the parties submits an objection to the judge’s order, then the commission would address the substance of those objections either by scheduling additional hearings or simply entering an order in response to those.”

There are two issues Judge Griffin has not yet ruled on. One is STO’s motion to dismiss the application based on legal defects, including SWEPCO failing to obtain necessary state and federal environmental permits. The second is a motion by SWEPCO to re-do its application, which STO has opposed stating that changing the application now would deprive landowners affected from having proper legal notice and the opportunity to intervene.

Costner has said it is not possible to predict if or when the ALJ will rule on those motions.